Edwards & Edwards
[2006] FamCA 1230
•22 November 2006
FAMILY COURT OF AUSTRALIA
EDWARDS & EDWARDS [2006] FamCA 1230
APPEAL – FROM DECISION OF FAMILY COURT JUDGE - CHILDREN - Whether trial Judge afforded procedural fairness to mother as a litigant in person - Whether or not trial Judge was in error in dealing with parenting aspects of mother’s Application for interim and final orders as a ‘fresh’ application, or whether he was dealing with a continuation of the original application in the Court commenced by father - Consideration of Court appearances leading up to hearing and manner in which hearing conducted – Satisfied that mother anticipated there would be an interim hearing followed by a final hearing on the merits, rather than a threshold hearing conducted on a summary basis applying the principles espoused in Rice and Asplund (1979) FLC 90-725 - Substance to mother’s complaint she was not afforded procedural fairness – Trial Judge did not determine whether mother’s application was a fresh application or continuation of proceedings - Whether trial Judge dealt with and made findings about the review provided in consent orders – No findings made about review process – Mother’s ground of appeal challenging failure to deal with question of review established – Whether, if proper construction of consent orders is that proceedings were continuing and either party could make further application for residence or contact, the principles espoused in Rice and Asplund would be relevant to such further application – Whether, if principles in Rice and Asplund were applicable, was it appropriate for trial Judge to make findings on a threshold basis – Trial Judge should have considered and afforded the mother an opportunity to make submissions as to whether this was a case of the exceptional nature referred to in CDJ v VAJ (1998) 197 CLR 172 requiring a hearing on the merits – In applying principles relative to changed circumstances, if the real complaint is that the underlying foundation for the consent orders is flawed, the inevitable corollary is a full hearing on the merits – Mother’s grounds of appeal directed to parenting orders must succeed – New trial ordered.
APPEAL – s 79A - Whether trial Judge was in error in summarily dismissing mother’s Application to set aside property aspects of consent orders under
s 79A – Consideration of principles applicable to application for summary dismissal – Concession of counsel for the father that father’s application sought dismissal of all applications by mother, rather than summary dismissal of the
s 79A application – Trial Judge in error in dealing with application on a summary basis – Guidelines one to three in Re F: Litigants in Person Guidelines (2001) FLC 93-072 not followed and mother not afforded procedural fairness.
APPEAL – s 118 - Whether trial Judge was correct in his determination that mother’s Applications were frivolous and vexatious, and whether he erred in exercise of discretion in restraining mother bringing any further proceedings in respect of the children or the parties’ property without leave of the Court – Given findings in respect of substantive appeal, unnecessary to discuss this order, or the costs order made by the trial Judge as these orders cannot stand.
APPEAL - APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether mother should be permitted to adduce further evidence – Whether father should be permitted to adduce further evidence relevant to s 79A application - As appeal allowed in respect of parenting proceedings, unnecessary to consider these applications.
Appeal allowed – Matter remitted for rehearing before a Judge other than the trial Judge.
COSTS – OF APPEAL – Whether mother and father should be granted certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – As appeal upheld on basis of error law, appropriate to grant certificates sought.
Legislation considered
Family Law Act1975 (Cth), ss 60CA, 79A, and 118
Federal Proceedings (Costs) Act1981 (Cth)
Cases considered
A v J (1995) FLC 92-619
Beck and Beck (2004) FLC 93-181
Bennett and Bennett (1991) FLC 92-191
Bigg v Suzi (1998) FLC 92-799
CDJ v VAJ (1998) 197 CLR 172
D and Y (1995) FLC 92-581
F and C and Child Representative [2004] FamCA 568
King and Finneran (2001) FLC 93-079
Lindon vThe Commonwealth (No. 2) (1996) 70 ALJR 541
Pelerman and Pelerman (2000) FLC 93-037
Pettitt v Dunkley [1971] 1 NSWLR 376
Rice and Asplund (1979) FLC 90-725
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re: K (1994) FLC 92-461
APPELLANT: KME
RESPONDENT: KGE
FILE NUMBER: TVF 2766 of 2000
APPEAL NUMBER: NA 68 of 2004; NA 11 of 2005
DATE DELIVERED: 22 November 2006
PLACE DELIVERED: Brisbane
JUDGMENT OF: Finn, May and Boland JJ
HEARING DATE: 1 and 2 November 2005 and by way of written submissions filed 25 August 2006 and 7 September 2006
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 11 October 2004, 14 February 2005
LOWER COURT MNC: [2004] FamCA 936
REPRESENTATION
APPELLANT: The mother appeared on her own behalf
COUNSEL FOR THE RESPONDENT: Mrs Pack
SOLICITORS FOR THE RESPONDENT: Wilson Ryan Grose
ORDERS
The appeal by the mother be allowed.
That the orders made by the Honourable Justice Monteith on 11 October 2004 and 14 February 2005 be set aside.
That the proceedings be remitted for rehearing in the Family Court of Australia Townsville Registry by a Judge other than the Honourable Justice Monteith.
That the Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
FAMILY COURT OF AUSTRALIA AT BRISBANE
APPEAL NUMBER: NA 68 of 2004 and NA 11 of 2005
FILE NUMBER: TVF 2766 of 2000
KME
Appellant
And
KGE
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
KME (‘the mother’) has brought two appeals against orders made by Monteith J on 11 October 2004 and 14 February 2005 in proceedings between herself and KGE (‘the father’). The proceedings before the trial Judge involved Applications by the mother in respect of parenting orders concerning the three children of the marriage, and an Application to set aside property orders under s 79A of the Family Law Act1975 (Cth) (‘the Act’). Monteith J dismissed both Applications, and subsequently his Honour made an order under s 118 of the Act restraining the mother bringing further proceedings in respect of the parties’ three children, or in respect of property settlement, without first obtaining leave of the Court. The trial Judge also made costs orders against the mother.
The mother was not legally represented before the trial Judge or before us at the hearing of the appeal. The mother’s Notices of Appeal which were filed respectively on 28 October 2004 and 14 March 2005 set out a number of challenges to the trial Judge’s orders. These challenges assert error by the trial Judge in the manner of conduct of the trial, in accepting untested evidence adverse to the mother, and that his Honour failed to ‘review’ consent orders made on 11 September 2001 (‘the consent orders’) in respect of arrangements for the parties’ three children in accordance with provisions in those orders.
The trial Judge dealt with the mother’s Application in respect of the children as one to which the principles in Rice and Asplund (1979) FLC 90-725 applied. As became apparent before us, the treatment by the trial Judge of the mother’s Application on a ‘threshold basis’ became the core challenge to his Honour’s orders in respect of the parenting Application.
Whilst the nature of the mother’s appeal against the summary dismissal of her s 79A Application is not clearly discernible from her grounds of appeal, before us it became apparent her challenge to his Honour’s orders was directed to his determination to dismiss the Application summarily, although no such order was sought by the father.
We discern that the appeals require us to examine:
· whether the trial Judge afforded procedural fairness to the mother as a litigant in person;
· whether or not the trial Judge was in error in dealing with the parenting aspects of the mother’s Application for interim and final orders as a ‘fresh’ application, or whether he was dealing with a continuation of the original application in the Court commenced by the father;
· the construction of and interpretation of the consent orders;
· whether the trial Judge dealt with and made findings about the review provided in the consent orders;
· if his Honour was dealing with the ‘review’ contemplated by the consent orders, whether the principles in Rice and Asplund (supra) applied;
· if on a proper construction the consent orders contemplated further proceedings about the children’s residence, whether the principles in Rice and Asplund (supra) applied;
· if the principles in Rice and Asplund (supra) were applicable, was it appropriate for the trial Judge to make findings on a threshold basis as there had been no previous hearing on the merits, and the matter raised serious issues involving untested evidence about the mother’s capacity to care for the children, and issues of child abuse both before and after the making of the consent orders;
· whether the trial Judge was in error in summarily dismissing the mother’s Application to set aside the property aspects of the consent orders under s 79A; and
· whether the trial Judge was correct in his determination that the mother’s Applications were frivolous and vexatious, and whether he erred in the exercise of his discretion in restraining the mother bringing any further proceedings in respect of the children or the parties’ property without leave of the Court.
Our examination of the questions we pose above will have an impact on our determination of whether the trial Judge erred in the exercise of his discretion in making costs orders against the mother.
BACKGROUND HISTORY
The father was born in 1962 and was aged 42 at the date of the trial. The mother was born in 1959. She was aged 45 at the date of the trial.
The parties were married in 1986 and separated in 2000. The parties were divorced in February 2003.
There are three children of the parties’ marriage, namely J born in 1990, R born in 1992 and A born in 1994. The children were aged respectively 13 years, 11 years and 10 years at the date of the trial.
On 3 November 2000 the father filed an Application in the Federal Magistrates Court at Townsville in which he sought orders that the three children reside with him.
On 4 December 2000 an order was made by consent in the Federal Magistrates Court that the children reside on a ‘week about’ arrangement with the mother and father. Orders were made for the appointment of a child representative, for preparation of a Family Report, and for the parties to attend upon Professor J, a psychiatrist, for counselling.
On 16 March 2001 orders were made by consent. The consent orders provided for continuation of the week about arrangement for the care of the children.
On 21 March 2001 the children, and subsequently the parties, were interviewed by Dr K, a consultant psychiatrist, for the purpose of preparing a report for the proceedings then fixed for hearing to commence on 9 May 2001. Dr K prepared a report dated 20 April 2001. Dr K prepared a supplementary report dated 9 May 2001.
In March 2001, on application by the Department of Families to the Townsville Magistrates Court/Childrens Court, orders were made that the children be placed in the care of the father.
On 9 May 2001 the matter was listed for hearing in the Court. The matter was adjourned. On that day further orders were made by consent which provided for the children to reside with the father and for the mother to have supervised contact each Sunday.
On 6 August 2001 the father made an Application to the Court ‘seeking to restrain [the mother] from defending the property settlement application’ which he had filed asserting non-compliance by the mother in respect of discovery. This Application was dismissed on 13 August 2001.
On 4 and 5 September 2001 the parties and the children were interviewed by Ms W, registered psychologist, who prepared a report for the Court dated 7 September 2001. A number of documents were provided to Ms W by the child representative, Ms C for the purpose of her assessment, including two affidavits of Dr K dated respectively 9 May 2001 and 14 May 2001. Ms W also had provided to her an affidavit of Professor J sworn 16 August 2001.
On 10 September 2001 the parenting and property Applications were listed before the trial Judge for final hearing. Both parties were legally represented. On that day evidence was given, in the absence of the parties, by Ms D, the children’s treating psychologist. A transcript of Ms D’s evidence was ordered by the trial Judge. Ms D’s oral evidence was led by counsel for the child representative. Neither party’s counsel cross examined Ms D. The trial Judge indicated, if necessary, Ms D could be recalled during the course of the hearing, and that the transcript of her evidence taken on 10 September 2001 would be her evidence in chief. Negotiations thereafter took place between the parties and their legal representatives and the consent orders were made.
Following an incident where the children ran away and were retained overnight by the mother, on 25 September 2001 the father commenced contravention proceedings which were adjourned to 28 September 2001. On that day an order was made that the mother have supervised contact at a children’s contact service operated by Relationships Australia and the contravention Application was further adjourned to 16 October 2001.
On 16 October 2001 the father’s contravention Application was dismissed and the mother was ordered to pay the father’s costs.
On 2 January 2002 the mother filed an Application (Form 8) in which she sought a stay of the consent orders, and orders for residence of the children, provision of an ‘independent’ Family Report, re-opening of the property settlement, psychiatric examination of the father, and Court ordered mediation.
On 11 February 2002 the mother’s Application was dismissed and the mother was ordered to pay the father’s costs.
In May 2002 Ms W attended a Women’s Centre where she interviewed and observed the mother and the children for the purpose of a report.
In September 2002 the child representative, having received Ms W’s report, recommended that contact continue to be supervised at the children’s contact service provided by Relationships Australia. In November 2002 the mother ceased attending the children’s contact service for the purpose of contact.
On 16 December 2002 the mother made an Application to the Court seeking to uplift a cassette tape held on the Court file for the purpose of repair of the tape. On that day the child representative, Ms C, sought and obtained an order that her appointment be discharged.
Subsequently, the mother made an Application for the release of the cassette tape for repair, and such order was made on 2 February 2004.
On 21 January 2004 the mother filed an Application on a Form 3 in the Brisbane Registry of the Court. That Application was transferred to the Townsville Registry on 10 March 2004.
On 26 July 2004 the mother filed an amended Application in a Case in which she sought, inter alia, that the consent orders be varied.
On 22 April 2004 the father filed a Response seeking the dismissal of the mother’s Form 3 Application. He filed an amended Response on 4 August 2004 seeking dismissal of all Applications filed by the mother.
The competing Applications were heard by the trial Judge on 17 and 18 August 2004 on a summary basis, and on 11 October 2004 orders dismissing the mother’s parenting and property applications were made by his Honour following delivery of his reserved reasons for judgment.
Subsequently, an Application was filed by the father seeking orders pursuant to s 118, and for orders that the mother pay his costs of the proceedings commenced on 21 January 2004. This Application was further amended and was heard by the trial Judge on 14 February 2005. His Honour delivered ex tempore reasons on that day in which he made orders restraining the mother from commencing parenting or property proceedings without first having obtained the leave of the Court, and made orders that the mother pay the father’s costs of and incidental to the proceedings.
THE TRIAL JUDGE’S REASONS FOR JUDGMENT (11 OCTOBER 2004)
The parenting issues
At the commencement of the trial Judge’s reasons his Honour noted: ‘[t]his is an application by the wife seeking to relitigate children and property issues that were resolved by consent orders made on 11 September 2001, during the course of a hearing that commenced before me on 7 September 2001’.
The trial Judge set out the terms of the consent orders in full. As a fundamental question in this appeal involves interpretation of the consent orders we set out the relevant parts of those orders:
‘1. Residence
1.1That the children of the marriage, [J] born [in] 1990, [R] born [in] 1992 and [A] born [in] 1994 reside with the husband.
1.2That the husband have the sole responsibility for the day to day and long term care, welfare and development of the children however the husband shall give the mother written notice within 7 days of any decision that he makes concerning the long term care welfare and development of the children.
2. Contact
2.1That the wife has contact with the children of the marriage as follows:
2.1.1At all times as agreed between the parties and/or as recommended by the Children’s Representative and/or as ordered by this Honourable Court.
2.1.2That the wife’s contact with the children be supervised.
2.1.3.That the supervisor be [SH] and/or [JF] and/or an appointee of Relationships Australia and/or as agreed between the parties.
2.1.4That the husband’s liability to pay the costs of supervision be limited to $20.00 each week.
2.1.5That contact be for a period of up to a period of eight hours on either Saturday or Sunday each week with the wife to notify the husband by 5.00 pm each Wednesday of the arrangements for contact by sending an email or letter (save and except such contact is suspended for 5 weeks per year on notice to permit the husband to take holidays with the children).
2.1.6If the wife fails to notify the husband by 5.00 pm each Wednesday of the necessary arrangements for contact then contact is suspended for the following weekend.
2.1.7If contact occurs at the premises operated by Relationships Australia then the husband shall be responsible for transporting the children to and from the said premises.
2.1.8The wife and/or the husband shall give all necessary direction to enable the privately appointed supervisors to collect the children from and deliver the children to the husband’s place of residence at the commencement and conclusion of each contact period.
2.1.9That other than for the sum of $20.00 the wife pay the costs of and incidental to the supervision of contact.
2.1.10That contact be supervised pending further order of this Court or agreement between the husband and wife.
2.1.11That the need for supervision of the mother’s contact with the children be reviewed at the request of the mother and that such review take place on the following terms:
(a)that there be no review prior to June 2002;
(b)that prior to any review the separative [sic] representative commission a further report of [Ms W] (or such other suitable expert chosen by the Children’s Representative) addressing the need for supervision and the matters set out in the notations hereto;
(c)that for the purpose of facilitating such report both parents provide authorities to all health care professionals and/or counsellors or such other persons as may be nominated by the separative [sic] representative to provide information to Ms [W];
(d)that on consideration of the report, if the parties are unable to agree the Children’s Representative shall make a recommendation to the parties;
(e)should either party not accept the said recommendation then the parties shall be at liberty to apply to the Court on 10 days notice;
(f)that neither party make application to the Court with respect to contact or residence prior to June 2002 save in accordance with this clause, or with leave of the Court obtained prior to filing the said application.
…
NOTATION PURSUANT TO CLAUSE 2.1.1[B]
For the purpose of [Ms W]’s report –
THAT THE MOTHER DEMONSTRATE:
1.An ability to differentiate her needs from those of the children and to put the children’s needs first;
2.An ability to recognise boundaries and enforce those boundaries both with respect to herself and the children’s interactions, and the interactions of the children between themselves;
3.An ability to refrain from making any negative statement about the father (or innuendo) and provide positive statements when appropriate;
4.An ability to actively encourage the children to have positive interaction with the father and the school and be compliant for the father and the school;
5.An ability to refrain from speaking about her miscarriages with the children;
6.An ability to reinforce with the children that:
(a)The residence arrangements are permanent;
(b)The mother can care for herself;
(c)The mother will always be in the children’s lives and accessible to them.
THAT THE FATHER DEMONSTRATE
1.That the father refrains from making any negative statement about the mother (or innuendo) and provide positive statements when appropriate;
2.An ability to reinforce with the children that:
a.The residence arrangements are permanent;
b.The mother can care for herself;
c.The mother will always be in the children’s lives and accessible to them.’
The trial Judge noted:
‘5.As can be seen, a review process was provided for in paragraph 2.1.11. This process took place and as the parties were unable to agree, a recommendation was made by the Children’s Representative, however no application was made to the Court under paragraph 2.11.11(e) [sic].
6.The Children’s Representative applied to the Court on 16 December 2002 to be discharged as she had completed her role pursuant to paragraph 2.1.11 of the orders and Legal Aid funding had expired.’
Thereafter his Honour commenced his discussion of the Applications before him under the heading ‘The Present Application’. His Honour set out the final orders sought by the mother in her Application filed 21 January 2004 which were as follows:
‘1.Sole Residency
2. Alternate orders – shared residency interim only. See exhibit l.
3. Property & finances
4. Spousal maintenance $350.00 pw plus $200.00 week unit rented as my accommodation
5. Full psychiatric assessment – [Professor J]’
His Honour also set out the interim orders sought in the mother’s Application which were:
‘1. All 3 children interviewed by psychologist who I agree with being [JP] or other than [Ms W].
2. Sole Residency
3. Alternate Orders (Interim only) Exhibit L
4.Full psychiatric assessment of [the father] by Professor [J] and the family interviewed.’
The trial Judge also set out in full the orders sought by the mother in her amended Application in a Case filed on 26 July 2004. The orders sought were as follows:
‘1. That Orders of 11 September 2001 be varied as follows.
2. (a) Orders 2.1 and sub-orders be rescinded.
(b)Orders 3.1 and sub-orders be rescinded.
3. Orders be granted giving the mother access as;
(a)Every second weekend starting immediately from Friday afternoon school to Monday morning, pickup and drop off to occur after and before school, at the school, in the absence of the other parent.
(b)Every weekend where a significant religious activity is being undertaken. In particular weekend [ ] for [A]’s confirmation and first holy communion.
(c)Every Wednesday evening beginning immediately.
(d)Ad hoc telephone and Internet access.
(e)Half school holidays and birthdays, starting on the next occurrence.
4.Family Report be undertaken by a court appointed expert, not [Ms W] or Dr [K].
5.[The father] be psychiatrically and psychologically assessed, which includes the use of an MMPI or PAI or other suitable psychometric instruments as determined by the practitioner.
6.[The father] have me reinstated on the family medical insurance.’
Under the heading ‘The Hearing’ the trial Judge said:
‘14.I took the view that before I should deal with the Application In The Case [sic], it was necessary to deal with the Application for Final Orders filed 21 January 2004.
15.This was because, in my view, it was necessary for the wife to establish changed circumstances as identified in Rice and Asplund (1979) F.L.C. 90-725 as explained in Falls -and- Carew 2004 Fam.L.A. [sic] 568.’
His Honour then referred to paragraphs 3 and 4 of the final orders sought by the mother noting they appeared to raise a s 79A application. His Honour said that because the Response sought dismissal of the mother’s Application ‘I thought it was necessary to consider the principles governing summary dismissal’.
His Honour then, under the heading ‘The Review Process’, referred to a report prepared by Ms W as contemplated in the consent orders. The trial Judge set out the whole of Ms W’s report. The trial Judge then reproduced a letter forwarded by the child representative to the mother on 2 September 2002, which letter set out the child representative’s recommendations pursuant to 2.1.11(d) of the consent orders. That recommendation was that contact continue to be supervised contact at a children’s contact service conducted by Relationships Australia.
The trial Judge thereafter set out details of correspondence and file notes tendered in the proceedings, being documents from the file of the children’s contact service. The documents included a letter to the mother (Exhibit 2) setting out terms and conditions upon which the children’s contact service was prepared to continue providing supervised contact facilities for the mother’s contact to the children. His Honour also set out a file note which referred to the mother attending the children’s contact centre with a tape recorder down the front of her blouse. Exhibit 4, being a record of the dates and times of the mother’s attendance at the children’s contact centre, was also reproduced. Following the final entry on 30 November 2002 the Exhibit contained the following notation: ‘[t]his file has now been closed’.
A file note from the Relationships Australia file relating to the mother’s attendance with Mr M, a registered psychologist, and a witness in the mother’s case, at the children’s contact centre on 30 June 2003 was also set out in full by the trial Judge.
Exhibit 7 recorded the children’s contact centre summary of events. It was in the following terms:
‘I CONSIDER THAT AS MUCH AS WE HAVE TRIED TO WORK ON AN OPPORTUNITY FOR THE CHILDREN TO SEE THEIR MOTHER HERE, AND ATTEMPTED TO WORK WITH [the mother] ON THE REQUIREMENTS FOR HER TO SHIFT HER APPROACH IN ORDER FOR THE CHILDREN TO RELAX AND HAVE A [sic] EMOTIONALY [sic] SAFE AND SUCESSFUL [sic] CONTACT HERE, I AM NOW OF THE BELIEF THAT WE CANNOT ACHIEVE THIS.
I THINK THAT THE LAST FEW CONTACTS AND HER FAXES HAVE INDICATED THAT SHE INTERPRETS SITUATIONS VERY MUCH FOR HER OWN CAUSE AND IT HAS GIVEN ME ENOUGH INFORMATION TO MAKE THE JUDGMENT THAT SHE IS NOT GOING TO CHANGE HER APPROACH TO THE USE OF THE CHILDREN’S CONTACT SERVICE.
I FEEL WE HAVE USED A HUGE AMOUNT OF TIME ON THIS CLIENT OVER THE YEARS AND HAVE TRIED EVERY WAY TO SUPPORT HER THROUGH THE CCS PROCESS WITH THE VIEW TO EVENTUALLY INDEPENDENTLY SEEING HER SONS.
I CONSIDER NOW THAT IT IS NOW VERY UNLIKELY THAT WE WILL OFFER THE SERVICE TO THIS FAMILY AGAIN IN THE FUTURE.
[Ms B]’
The trial Judge also set out in full a report by Ms S dated 4 August 2004 to the Chief Executive Officer of Relationships Australia. This report was the response to a complaint received from the mother concerning the operation of the children’s contact service. Ms S summarised her conclusions at the end of her report as follows:
‘1.[The mother] has made repeated attempts to have allegations of child abuse reported by RAQ and she remains dissatisfied with our responses.
2.[The mother] has attempted to regain visits via the centre to her children after they ceased due to her own volition. As these previous visits were so distressful to her children, measures were put in place to attempt to assess the changes [the mother] has made to her ability to act appropriately on visits with her children.
3.On the recent contacts between [the mother] and the [ ] staff there are many indicators that [the mother] has been unable to adjust her approach to one which appreciates the needs of the children.
4.[The mother] requested a letter from Ms [B], which stated that that [sic] the Child Contact Service was not able to offer a service to her at this time. However, it appears that this has not satisfied [the mother] to the point where Mr [M] has requested that it be removed from the file.
5.The [ ] staff have taken up a great deal of resources in attempting to make the contact between [the mother] and her children work effectively within the expectations of conduct for the service. Despite this effort [the mother] has been unable to comply with expectations and thus it would further distress her children and other users of the service for contact to be reinstated at this time.
6.The [ ] staff have worked exceedingly hard with the matter and have tried to be fair and supportive to the family. It is unfortunate that [the mother] is unable to co-operate and takes her frustrations out on the staff by being abusive and demanding.
7.[The mother] is so disappointed in and distrustful of staff within the service that it would be inappropriate for her to continue to attempt to use it.
8. The [ ] staff are now so distrustful and cautious about their dealings with [the mother] that it would be inappropriate to attempt any further work with this family.’
The trial Judge referred to the affidavit of the mother filed on 26 July 2004 in which she deposed to receiving the child representative, Ms C’s, letter of 2 September 2002 and that, as she found the reduced ‘access’ was so distressing to the children and herself, she had requested Ms C to bring the matter back to the Court. The mother’s affidavit also deposed to her decision to pursue the matter ‘through legal channels’, and that she had not anticipated the process would take so long. At paragraphs 49 and 50 of her affidavit the mother said:
‘49.Whilst I had great misgivings about not seeing the boys over this period it was obvious to me that there was no healthy purpose being served by making them go through such distress for so little access.
50.I had also become very paranoid about wanting the boys attitudes and experiences whilst in the case [sic] of their father assessed prior to me seeing them again when it would be argued I had contaminated them with my “brainwashing”.’
The trial Judge then referred to photographs tendered by the father’s counsel, and referred to the fact that these photographs had been the subject of comment in the report by Dr K prepared for the original hearing. The trial Judge set out extracts from Dr K’s report including her comments on the photographs, her recommendation that the children should be placed in the care of the father, and that contact with the mother should be supervised. His Honour then set out a summary of Ms W’s first report prepared for the substantive proceedings which he noted to be ‘illuminating, for present purposes’.
His Honour then considered the issue of changed circumstances. He noted that he had asked the mother to identify ‘what were the changed circumstances on which she relied’ and recorded that the mother had identified 14 such matters. In summary those matters were:
· the mother’s reliance on evidence of Mr M, psychologist (Mr M’s report was described by the trial Judge as ‘an academic critique of the reports and methodology of Dr [K] and Ms [W], and his opinions as to the efficacy of Parental Alienation Syndrome, Gender Identity Disorder and Hystrionic Personality Disorder’);
· abuse substantiated by the Department of Families post dating the consent orders;
· a letter written by J to the Queensland Commissioner for Children (the trial Judge noted that ‘the letter was obviously written prior to the consent orders being made’);
· a letter written by J to the Children’s Commissioner dated 6 May 2002 (the trial Judge referred to Ms W’s comments in her report in which she set out her opinion that J ‘may have been put up to writing this letter’);
· the mother’s lack of contact to the children;
· a file note from J’s school dated 25 March 2003 being a note of a school counsellor recording J asking what age did he have to be to decide with whom he could live;
· disclosures made to Relationships Australia, and the mother’s complaint that the children’s contact service had not met their statutory obligation in reporting abuse allegations to the appropriate authorities;
· a note written by J received by the mother in December 2003 (in this note J wrote, inter alia, ‘“We’re alright but really miss you … PS There are lots of fights and I’m really sick of living with [the father]”’);
· evidence of a friend of the mother, Ms DE, of a conversation with J at J’s school on 29 July 2004 (Ms DE deposed to J saying in response to her question ‘“are you happy” … “No, how can I be?”’. Ms DE then said ‘“no, [J], are you happy at school?”’. She asserted he replied ‘“yes, I love this school. That’s the only thing that keeps me going”’);
· an incident on 12 September 2002 where the father conceded he had rubbed J’s nose in some bread after he had refused to clean it up after it had been knocked to the floor by him;
· an affidavit of JF concerning her difficulties in supervising contact;
· the report of Relationships Australia;
· the report of Ms W dated 17 June 2002; and
· an affidavit of Ms SD sworn 16 August 2004 (Ms SD is a registered psychologist who had been the mother’s treating psychologist from May 2001 until February 2004. Ms SD in her affidavit referred to speaking with Ms W, but deposed she was unaware that the conversation was for the purpose of a report. She also deposed to her comments being taken out of context).
Having noted that the children had been in the father’s care since orders were made approximately six months prior to the consent orders, and that the children had remained in the father’s care continuously thereafter, the trial Judge set out a number of paragraphs of the father’s affidavit about the children’s present circumstances, and his financial circumstances.
The trial Judge referred to and set out extracts from the decision of the Full Court in F and C and Child Representative [2004] FamCA 568 including the Full Court’s discussion in that case of the impact of the High Court’s decision in CDJ v VAJ (1998) 197 CLR 172 at 204.
The trial Judge concluded his findings in respect of the mother’s Application for parenting orders and said:
‘48.In my opinion, neither individually nor collectively, do the 14 matters that the applicant wife has listed as changed circumstances fulfil these tests. In my opinion, this case demonstrates the wife’s obsessive pursuit, without any regard for the children’s wellbeing, of her aims. She simply wishes to relitigate this whole matter which, in my opinion, would be extremely harmful to the children, financially debilitating for the parties, and with absolutely no prospect of success. The proceedings with respect to the children’s issues are, in my opinion, frivolous and vexatious.’
The s 79A Application
The trial Judge then considered the question of setting aside the property provisions of the consent orders under s 79A. His Honour, having set out the relevant statutory provision, then referred to the decision in Beck and Beck (2004) FLC 93-181.
The trial Judge noted the evidence from the mother ‘on this issue is very limited’. His Honour set out the mother’s evidence in her affidavit filed 21 January 2004 in relation to her account of the circumstances of the signing of the consent orders. He thereafter set out a statement made by Ms CD, who attended Court with the mother as her support person. The trial Judge concluded ‘…as can be seen by comparing the statement of [Ms CD] with the affidavits of the wife, there is significant conflict between the two’.
The trial Judge considered the case law in relation to duress. His Honour said ‘[f]urther, the matters referred to in paragraphs 21 to 24 of her affidavit could not, in my opinion, amount to evidence of a miscarriage of justice’.
SECTION 118 AND COSTS JUDGMENT
On 14 February 2005 the trial Judge delivered ex tempore reasons for judgment. His Honour noted the Application before him arose following his dismissal of the mother’s Applications in October 2004, following which he gave liberty to apply. Having noted the matter had been before him on a number of occasions and adjourned, his Honour said he was dealing with an amended Application in a Case in which the father sought the following orders:
‘(1)That the application be heard in proceedings TVF 2766 of 2000 pursuant to the judgment, dated 11 October 2004;
(2)That the wife respondent, [ ], be restrained from instituting proceedings under the Family Law Act 1975 as amended with respect to the children: [J], born [in] 1990; [R], born [in] 1992; and [A], born [in] 1994; and/or with respect to the matrimonial property of the parties without the leave of this Court;
(3)That the wife respondent pay the husband applicant’s costs of and incidental to the proceedings before this Court relating to the wife’s applications filed in this Court on or about 21 January 2004 for such other orders as the Court seems [sic] fit;
(4)That the wife respondent pay the husband applicant’s costs of and incidental to this application.’
His Honour said:
‘8.The clear purpose of the section is to prevent matters being re-litigated in the Court where to do so would be extremely harmful to the participants and/or their children. As I found in my Reasons for Judgment to allow these proceedings to be re-litigated was, in my view, going to be harmful to the parties, their financial situation, and their children.’
His Honour concluded:
‘9. Having regard to those matters I think it is appropriate, having dismissed these applications because they have, in my opinion, been brought frivolously and vexatiously to make the orders sought by [counsel for the father] in paragraph (2).’
The trial Judge then turned to the question of costs and said ‘section 118 seems to provide a different basis for making an order for costs in the Family Court than section 117’.
His Honour referred to s 117(1) and to the decision of the Full Court in
I and I (No 2) (1995) FLC 92-625 and noted that counsel for the father had referred him to Schwarz v Schwarz (1985) FLC 91-618. His Honour also referred to Collins and the Victorian Legal Aid Commission (1984) FLC 91-508. The trial Judge considered the father’s affidavit filed 23 November 2004 in which he set out his financial position. He referred to the father’s evidence that he was employed as an engineer manager. The trial Judge then noted the father’s counsel had drawn his attention to the fact the father had an outstanding debt of $78,000.00 in respect of legal costs. He noted the father had purchased land and built a home which he asserted had a value of approximately $200,000.00 and was subject to a mortgage debt of $170,000.00. He also noted that the father said that it would be difficult for him to pay the children’s private school fees because of anticipated legal costs in these proceedings.The trial Judge also referred to the mother’s affidavit filed in Court that day where she deposed to being left with no money after paying legal costs. His Honour said ‘[i]f this was an application being dealt with under section 117 of the Act, I think, taking into account all of the matters that I am required to take into account under section 117 I would not order [the mother] to pay the costs’.
His Honour concluded:
‘23. However, section 118 is a quite different matter. It deals with a situation where a Court has found the proceedings are frivolous and vexatious, it seems to me to cry out for an order for costs once the Court has made such a finding. It would seem to me to be entirely unjust to make [the father] pay his costs when I have found the proceedings he has been forced to defend, brought by the wife, were frivolous and vexatious. Section 118 seems to me to require in those circumstances as a matter of justice that I should make an order against the wife.’
GROUNDS OF APPEAL
The mother’s Notice of Appeal filed 28 October 2004 contained the following grounds of appeal:
‘1. Judge failed to meet the requirements of LIP under Re. F; this led to the LIP being unfairly disadvantaged as procedural and legal issues were never explained so that the LIP understood what was happening
2 Judge accepted untested evidence as basis of judgment
3 Judge failed to consider evidence to the contray [sic]; [Mr M’s] report, [Professor J], Dr [L], [JF] etc
4 Judge failed to consider PAS [Parental Alienation Syndrome] is manifestly discredited and pro-paedophilic theory
5 Judge failed to consider paramount issue of the best interests of the children
6 Judge accepted bizarre argument Counsel for fathers [sic] acknowledgement that abuse prior to and subsequent to orders and thus no change.
7 Reason for threshold test was never explained
8 Reason for summary dismissal of S 79a [sic] never explained
9 Judge erred in the way he dealt with the applications of the LIP by not condensing and making sense of them
10 Judge ignores requested on 16/1/02 that this matter be brought back for review before him as set out in the orders 11/9/01; he ignores this matter in his findings.
11 Judge ignores directions by Majistrate [sic] Coker at the divorce hearing Feb 2003 that this matter should be brought back before his honour [sic] urgently. Notes to this effect were placed on the file.’
The mother’s further Notice of Appeal filed 14 March 2005 contained the following two paragraphs which do not, prima facie, constitute grounds of appeal:
‘1. S118 orders made on 14/2/05 in FCA Townsville.
2. Costs orders for hearings in 2004 and 2005.’
However, from the mother’s oral submissions before us, we were able to discern the nature of the mother’s appeal against the orders made by the trial Judge on 14 February 2005 and their interrelationship with the orders made on 11 October 2004.
We propose to deal with the mother’s grounds of appeal, and the Applications to adduce further evidence, by answering the questions we posed in paragraph 5.
As will become apparent from our reasons we do not consider it is necessary for us to address the mother’s challenge to the trial Judge’s asserted failure to ‘consider PAS is manifestly discredited and pro-paedophilic theory’.
THE PROCEDURAL FAIRNESS GROUND; AND
WHETHER OR NOT THE TRIAL JUDGE WAS IN ERROR IN DEALING WITH THE PARENTING ASPECTS OF THE MOTHER’S APPLICATION FOR INTERIM AND FINAL ORDERS AS A ‘FRESH’ APPLICATION, OR WHETHER HE WAS DEALING WITH A CONTINUATION OF THE ORIGINAL APPLICATION IN THE COURT COMMENCED BY THE FATHER
To examine these issues it is necessary to consider the terms of the consent orders, the Court appearances leading up to the hearing on 17 and 18 August 2004, as well as the manner in which the hearing was conducted. We note that the father’s counsel did not oppose us receiving such transcript although it did not form part of the appeal books.
Order 2 of the consent orders, prima facie, dealt with the mother’s contact to the children. Order 2.1.10 of the consent orders provided that the mother’s contact be supervised ‘pending further order of this Court or agreement between the husband and wife’. Order 2.1.11, on its face, provided for a review of the need for supervision of the mother’s contact and set out machinery provisions for such review, which was not to occur prior to June 2002, and after the child representative commissioned a further report addressing the need for supervision. However, Order 2.1.11(f) provided ‘that neither party make application to the Court with respect to contact or residence [our emphasis] prior to June 2002 save in accordance with this clause, or with leave of the Court obtained prior to filing the said application’.
Order 2.1.11(b) provided that the expert who was to provide a report was to address ‘the need for supervision and the matters set out in the notations hereto’. The notations referred not only to matters relevant to the mother, but matters relevant to the father.
It is apparent that the orders are ambiguous, and open to differing interpretations. On a narrow interpretation, the orders may be seen as providing only for a review of the mother’s contact remaining as supervised contact. However, such an interpretation is difficult to reconcile with the provisions of 2.1.11(f) which, prima facie, contemplated further applications by either the mother or the father as of right after June 2002, or before that date with leave of the Court. It appears to us a wider interpretation of the orders is supported by the use of ‘or’ in Order 2.1.11(f) that is:
· applications about residence or contact could be initiated by either party after June 2002; or
· applications about residence or contact could be brought by either party before June 2002 with leave of the Court.
This wider interpretation is further supported by the requirement that the expert appointed by the child representative to provide a report was not only to have regard to matters relating to the mother’s supervised contact, and the matters set out in the notations, but also the matters to be considered included the conduct of the father which may have been relevant to him continuing to remain the resident parent.
The parties had a number of appearances before the trial Judge leading up to the hearing on 17 and 18 August 2004 in which the effect of the consent orders was canvassed. Those mentions and the discussions which ensued set the scene for the conduct of the hearing.
On 16 December 2002 the mother appeared before the trial Judge. On that occasion the trial Judge asked the child representative about the review. Counsel for the child representative said ‘[t]here was a mechanism for that, your Honour, and it hasn’t been taken up’ (transcript, 16 December 2002, p 1). The mother then asked the trial Judge whether that meant she was responsible for the review. She said she had asked to bring the matter back before the Court but it was ‘thrown out’. The mother explained to the trial Judge because of the mechanism in the consent orders she could not bring the matter before the Court for review until July 2002 and she did not have funding or Legal Aid support. Having noted no application had been made, the trial Judge discharged the appointment of the child representative.
The matter was before the trial Judge again on 2 February 2004 and on 27 April 2004 when adjournments were sought.
On 17 May 2004 the matter was before the trial Judge when the father’s solicitor sought an adjournment. Mr CB (the father’s solicitor) said on that occasion ‘so that if there was going to be some contest in relation to residence on an interim basis that’s certainly more than a day, your Honour, with the material that’s already filed’ (transcript, 17 May 2004, p 1). The mother referred to the fact that the orders contained a provision for review. Discussion took place between the mother and the trial Judge as to whether there was any utility in having an interim application.
On 7 June 2004 the mother said to the trial Judge ‘[t]oday, yes, I agree with Mr [CB] that we should proceed to a short interim hearing, particularly, I haven’t seen my children for quite some time now and specifically to look at the current orders that are in place for access to these children’. The father’s solicitor sought the matter be placed in the next duty list. The mother then said:
‘[THE MOTHER]: Does that mean, your Honour, that an interim hearing would be held to look at access.’
HIS HONOUR: If you both want me to, I’ll do it, yes.
[THE MOTHER]: Well, that’s what I request, your Honour.’
The matter was then stood over to 26 July 2004. We do not have the benefit of transcript of 26 July 2004.
The matter next came before the trial Judge on 5 August 2004 when a dispute about the subpoenas issued by the mother to the children’s school was before the Court. Further discussion took place between the father’s solicitor and the trial Judge. His Honour noted, referring to the Application in a Case:
‘This is an application in the case, filed in January as distinct from an application brought in the proceedings that are still extant because of the orders that were made on 11 September 2001. In orders [sic] words, because of the way in which these orders have been framed these proceedings are still on foot.’
After further discussion with the father’s solicitor the trial Judge said:
‘HIS HONOUR: - - - is in terms that mean that the Court has not finally determined the issue of supervised contact. It may be argued that it’s finally determined other things but not that, and I would have thought – I’ll hear from what [the mother] has to say – but I would have thought that at the moment this application is misconceived to – what [the mother] is seeking to do, as I understand it, is to bring a fresh – completely fresh case.’
Thereafter his Honour discussed with the father’s solicitor matters relevant to an application applying the principles in Rice and Asplund (supra). Having discussed the form of the Application before him the father’s solicitor said:
‘MR [CB]: - - - and therefore the affidavits that were filed in a sense would only have been with respect to an interim matter I suppose it might be argued that it is properly before you. And the end result of it is that there is the recommendation of Ms [W] in relation to a continuation of supervision and in a letter from the separate representative, again in accordance with this subsection, making a recommendation about the continued supervised contact. So I suppose one of our arguments would have been then that those things having occurred 2.1.11(e) would still, perhaps, limit one or either of the parties to bring an application simply with respect to any dissatisfaction with that process or the end result of that process.’
The father’s solicitor then proffered the submission that subparagraph (f) of Order 2.1.11 of the consent orders could be interpreted as applying only up until June 2002.
At the end of the extensive discussion between the trial Judge and the father’s solicitor the trial Judge asked the mother to comment. The mother said (transcript, 5 August 2004, p 5):
‘[THE MOTHER]: Well, your Honour, I’m a self litigant. It’s all a bit over my head. I was told that I need to apply to the Court that this was a fresh matter. I was told that by the case manager in Cairns. Registrar Victoire heard the mediation the other day and was aware of this case, and I was also informed by the Registry earlier in the year when I actually applied. And I did bring this matter back to Court, your Honour, on 12 February 2002 because of the abuse of the children and asked for leave of the Court and that was. And until PAS had been discredited, which it has now, there was no point in bringing this matter back to Court.’
After further extensive discussion the matter was adjourned until 6 August 2004. On that occasion the trial Judge advised the parties he would hear the matter in the following week. The mother told the trial Judge he would ‘not need to read the subpoenaed material before the interim orders were heard’. His Honour said: ‘I mean, they may or may not be significant. [The mother] has to show changed circumstances’. However, at the end of the mention the following discussion took place between the trial Judge, the mother and the father’s solicitor about the evidence of Mr M and papers relating to ‘Parental Alienation Syndrome’. The trial Judge said:
‘HIS HONOUR: Well, they’re matters that will only arise as being relevant in the event that he was to be cross-examined about the opinions that he’s expressed … It’s not appropriate, at this time in any event, for it to be part of the Court record. His opinions are what matter. The issue will be, I guess, on the interim hearing … will be whether I should change the status quo which is what’s in place at the moment and has been in place for some time … That means, for instance, that if there were competing professional opinions, and that’s what this appears to be, the only way that that issue can be resolved is on a trial.’
The mother replied: ‘Yes, your Honour’. The trial Judge continued:
‘HIS HONOUR: I can’t resolve it between two sets of affidavits. I have to see the witnesses cross-examined. And it would only be – and that won’t happen on an interim hearing, so it would only be if Mr [M] was cross-examined and the issue of the basis of his opinion was challenged that this material might then become relevant in support of the opinions that he’s expressing. Do you understand?
[THE MOTHER]: Yes, your Honour, I understand.’
The trial Judge then rejected the mother’s tender of the material relative to ‘Parental Alienation Syndrome’.
At the commencement of the hearing the trial Judge, having identified the Applications and affidavits relied on by the parties, said to the father’s counsel:
‘HIS HONOUR: [to counsel for the father], it seems to me that the way I should approach is – the application in the case brought by the mother seeking interim orders is dependent upon the mother having a right to bring the initiating application. So it would seem to me that I don’t get to the interim application without having first decided on the principles that have been long established by the Court in Rice v Asplund, as explained by [F v C and Child Representative], and it’s only if I come to the conclusion that the applicant has a right to being [sic] fresh proceedings that I should then deal with the application for interim orders, and in relation to the application for interim orders – if I get to it – I’m bound by the Full Court decision in Cowling.’
His Honour further said:
‘It strikes me that – I mean, I’m not quite sure how I’m going to approach this yet – but it seems to me that I have to address the threshold question before I address anything else. And once I’ve addressed that I might either decide it or reserve it, and then go on and hear argument on the interim application and then reserve that, and then deliver a judgment in relation to both at the same time, or I might do it ex tempore. I haven’t decided. It will turn on how things fall, I think. But it strikes me that I have to – that I am forced to consider the threshold issue first. I can hardly decide an interim application if the initiating application has no basis.’ (transcript, 17 August 2004, p 4)
Counsel for the father then referred the trial Judge to the mother’s Application for Final Orders asserting that nowhere in that Application was there an Application for variation of the consent orders. Counsel for the father submitted to the trial Judge that if he determined the threshold issue against the mother, then he should dismiss all Applications. After further dialogue between the trial Judge and counsel for the father, his Honour then asked whether the mother had understood what had been said and the mother replied ‘[n]ot really, your Honour’.
His Honour thereafter explained to the mother the principles espoused in Rice and Asplund (supra) and indicated he would have a copy of the decision in that case provided to the mother. His Honour then said:
‘Now, the reason that I’m raising that with you is that if the initiating application does not get what I’ll call the threshold question, which is – and the threshold question is held by Rice v Asplund and by [F v C and Child Representative] in relation to the children’s matters, then we never get to the interim application, because the interim application is an application in a case. The case is your initiating application. If it doesn’t have merit, then the interim application falls by the wayside, because the initiating application falls by the wayside.’
The mother replied to the trial Judge as follows:
‘[THE MOTHER]: Your Honour, can I just say to you that when I filed this initial application - - -
HIS HONOUR: Yes.
[THE MOTHER]: - - - I was advised to do it this way, and I was actually advised what to put on it. It was my understanding that on the way to a final application that there was an interim order to be heard, and particularly, because I haven’t seen these children for such a long time. And also I was advised that my initial application is in regard to the well-being of the children and, because I signed consent orders under extreme duress, which I will argue later, I was to file another application explaining to the Court the property situation. Because the property situation actually went down in those orders that I was disallowed to read.’
The matter resumed after a short morning tea break when his Honour enquired whether the mother had had the opportunity to read the decision in Rice and Asplund (supra) and to tell him ‘what are the changed circumstances in this case which would justify a review by the Court of the custodial situation that we ordered by consent back in September of 2001?’. Thereafter the mother attempted to articulate her concerns, including her concern that the expert evidence contained in the reports of Dr K, Ms W and the oral evidence of Ms D had never been the subject of cross examination.
It appears to us from the discussions between the trial Judge and the mother, relevant parts of which we have extracted above about the affidavit material on which she sought to rely, that she had filed her Application for Final Orders and prepared her affidavit filed on 9 August 2004 in anticipation of an interim hearing, and had not filed material on which she proposed to rely at the final hearing.
During the hearing, where it appears the trial Judge had determined to hear the mother’s Application for Final Orders on a ‘threshold basis’, his Honour did permit the mother to give viva voce evidence in which she referred to receipt of a letter, the author of which she identified as J.
The mother sought to have evidence contained in an affidavit sworn by one of the contact supervisors, JF admitted. The trial Judge asked whether the affidavit was ‘part of the process that was undertaken in relation to the review conducted – is that where this fits?’. The mother then drew the trial Judge’s attention to the fact that no review had been conducted.
After the mother had identified her material, the trial Judge said:
‘What other evidence is it that you want to tender – I’m not going to let – this is not going to degenerate into a retrial now. What we’re dealing with at the moment is whether I will allow there to be a retrial. If I decided that there are sufficient changed circumstances to require the Court to reopen the matter then once I’ve made that decision, if I do, we will then – not today now – deal with the interim application.
Once I’ve dealt with the interim application the matter will then proceed onto a trial in the normal course of events, which will be a year later or something, within all the intermediate steps that need to be taken in relation to that. But before we do that I have to be persuaded that this is a case where there are sufficiently important substantial changed circumstances that require the Court to revisit this and that’s the process I’m going through now.
Now, having said that to you, which I thought I’d made clear from the start this morning, what is it you want to do?’
From our examination of the consent orders, we discern that there is cogent support for the argument that the mother’s Application for Final Orders filed on 21 January 2004 was an application as contemplated by the parties themselves in Order 2.1.11(f) of the consent orders, and could arguably be construed as a continuation of the proceedings before the Court on 11 September 2001.
We are satisfied that the amended Application in a Case filed by the mother could properly be construed as an application to vary the contact orders (provided for in Order 2.1.10) on an interim basis pending the determination of residence and contact as contemplated in Order 2.1.11(f).
We are satisfied the mother anticipated, in reliance on the consent orders, and as a result of matters discussed at the various mention dates we have earlier referred to, there would be an interim hearing followed by a final hearing on the merits when she would have an opportunity to cross examine witnesses, in particular Dr K and Ms W, and adduce evidence from her treating psychologist. As well, the mother envisaged calling evidence from Mr M, whose evidence was directed, inter alia, to the issue of Dr K’s diagnosis of the mother suffering a histrionic personality disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders IV (‘DSM IV’) and demonstrating parental alienation syndrome.
From our examination of the transcript, we are satisfied that the mother anticipated she was at the Court for the purpose of a hearing of the interim Application, rather than a ‘threshold’ hearing conducted on a summary basis applying the principles espoused in Rice and Asplund (supra). The mother had no appropriate prior notice, and no opportunity to properly present a case on the latter basis, if such a course was appropriate on the facts of this case.
Whilst we are satisfied the trial Judge did provide to the mother during the course of the proceedings copies of relevant case law, and explained to her the general principles set out in Rice and Asplund (supra), we note the guidelines in Re F: Litigants in Person Guidelines (2001) FLC
93-072 include the following:‘1. A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3. A judge should explain to the litigant in person any procedures relevant to the litigation;’
Our examination of the transcripts leading up to and at the hearing reveals differing submissions by the father’s solicitor and counsel about the approach to the mother’s Application, and no definite determination by the trial Judge about the manner of the conduct of the proceedings at the commencement of the Application. Whilst we appreciate the difficulties confronting the trial Judge by reason of the ambiguous consent orders, the numerous adjournments sought and granted, and changing positions of the father’s legal representatives, it is apparent the mother was placed at a significant disadvantage by the failure of the trial Judge to determine before, or at least at the commencement of the hearing, the procedure for dealing with the mother’s Application.
Having determined to apply the principles in Rice and Asplund (supra) we also discern his Honour did not explain to the mother how the proceedings would be conducted, that is, ‘on the papers’, or whether he would permit any cross examination by the mother of Dr K or Ms W’s untested evidence.
From an examination of the transcript it is apparent the trial Judge did not address the mother’s assertion that she ‘was told’ to file an Application for Final Orders. In light of the ambiguity in the consent orders, and the earlier dismissal of the mother’s Application in February 2002, the filing of an Application using the then Form 3 for interim and final orders is explicable.
We are satisfied that in these circumstances there is substance to the mother’s complaint that she was not afforded procedural fairness and that the trial Judge did not determine whether the mother’s Application was a fresh application or a continuation of proceedings.
DID THE TRIAL JUDGE MAKE FINDINGS ABOUT THE REVIEW APPLICATION?
The trial Judge in his reasons for judgment identified the review provisions of the consent orders under the heading ‘The Review Process’. We have already set out a summary of the trial Judge’s reasons for judgment. Whilst the trial Judge set out in full the evidence of Ms W, which evidence was potentially relevant to the review, he made no findings about the review process.
It is well established that a failure by the trial Judge to give reasons for his or her conclusions may constitute an error of law (Pettitt v Dunkley [1971] 1 NSWLR 376). The requirement to give adequate reasons is not in doubt. In Bennett and Bennett (1991) FLC 92-191 the Full Court considered that the test as to the adequacy of reasons propounded by Gray J in the passage appearing hereunder was a useful one and one which applies to discretionary judgments. The Court observed at 78,266:
‘In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.’
In A v J (1995) FLC 92-619 at 82,230 - 82,233, the Full Court comprehensively reviewed a number of decisions dealing with adequacy of reasons, specifically to discretionary judgments involving the welfare of a child and said at 82,232:
‘[W]here … the competing proposals are evenly balanced, [it is] important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should not be a microscopic analysis of, for example, words used by a trial Judge, if, in all the circumstances, it is clear that the trial Judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration’.
We are unable to discern any reasoning by the trial Judge in respect of the ‘review application’, and we are satisfied that ground 10, insofar as it challenges the trial Judge’s failure to deal with the question of the review, is established. We are accordingly unable to discern whether the trial Judge considered it was appropriate to apply the principles in Rice and Asplund (supra) to the ‘review contemplated by the consent orders’, or whether he mistakenly thought the mother had abandoned, or was not seeking a review.
IF THE PROPER CONSTRUCTION OF THE ORDERS IS THAT THE PROCEEDINGS WERE CONTINUING AND EITHER PARTY COULD MAKE A FURTHER APPLICATION FOR RESIDENCE OR CONTACT, WOULD THE PRINCIPLES ESPOUSED IN RICE AND ASPLUND (supra) BE RELEVANT TO SUCH FURTHER APPLICATION?
The principles in Rice and Asplund (supra) have been regularly invoked in proceedings under the Act since 1979. Those principles are well known.
The principles were extensively reviewed in F and C and Child Representative (supra). There, the Full Court said:
‘38. The principles that have been developed by the Full Court in such applications are well settled. In Rice v Asplund Evatt CJ, with whom Pawley SJ and Fogarty J agreed said at 78,905:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…”
…
40. Nygh J, with who [sic] Evatt CJ and Burton J agreed, said in F and N (1987) FLC 91-813; (1987) 11 Fam LR 664 that the Court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.
…
44. Most recently, Collier J, when determining an appeal from a Federal Magistrate in King and Finneran (2001) FLC 93-079 dealt first with an argument that following the extensive amendments to the Family Law Act in 1995, it was now mandatory to conduct a full inquiry of the matters set out in s 68F whenever a parenting order is sought. We agree with his Honour’s view that the legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is the application of a threshold test, to be unavailable since the coming into effect of the 1995 amendments. His Honour correctly observed at 88,367-88,369:
“41. The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or … at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. …It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191 ).
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
…
49. Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50. … In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
…
64. … the purpose of the rule is to protect the children from exposure to further unnecessary litigation.”’
Also apposite in this case is the caveat placed by the Full Court on Collier J’s discussion in King and Finneran (2001) FLC 93-079 having regard to the judgment of the High Court in CDJ v VAJ (supra) at 204. The majority in F and C and Child Representative (supra) referred to this ‘caveat’ as follows:
‘45. Although this point was not argued before us it may be that there is need to add a caveat to Collier J’s view that it may be sufficient to allow a fresh application to proceed if there is a “real likelihood that a change may follow”. In CDJ v VAJ (1998) 197 CLR 172 at 204; FLC 92-828 at 85,449; 23 Fam LR 755 at 780-781; the High Court determined an appeal concerning the circumstances in which a Full Court might admit further evidence in a parenting case. McHugh, Gummow and Callinan JJ said:
“[117] The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better ‘custodian’ of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
[118]The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.”’
The well settled principles in Rice and Asplund (supra) were formulated to promote the best interests of children who are the subject of proceedings under the Act. The principles recognise the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential abuse of a child by subjecting the child to repeat expert interviews. Whilst finality of litigation is a desirable object, it has long been recognised that orders which relate to the welfare of a child and which require the child’s best interests to be the paramount consideration, can never be final, and that further applications can, and should, in an appropriate case, be made to and determined by the Court. In many instances it will be appropriate that some applications should be dealt with on a threshold basis. In other cases the threshold question should be determined as part of the overall proceedings.
It appears to us that the Principles, having regard to their Object, must have potential relevance where the parties themselves contemplate in consent orders further contested proceedings about where children will live, and the time they will spend with the other party to the litigation. Failure to do so would not be in accord with s 60CA (formerly s 65E) of the Act which section requires the Court in making a parenting order to have regard to the best interests of a child as its paramount consideration.
In King and Finneran (supra) Collier J, in discussing D and Y (1995) FLC 92-581, and the reference in that case to ‘strong grounds’ said ‘[t]hat is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow’. We have already set out the Full Court’s consideration in F and C and Child Representative (supra) of the impact of the judgment of the High Court in CDJ v VAJ (supra) on the phrase ‘a real likelihood that a change may follow’.
In CDJ v VAJ (supra), when discussing circumstances where it is appropriate to admit further evidence, McHugh, Gummow and Callinan JJ reaffirmed the importance of finality of litigation involving children. Their Honours, however, recognised there are exceptional cases, including cases of physical and psychological abuse of children, where it may be proper for there to be a new hearing if ‘the court thinks there is a very real risk, although not a probability, that the current orders may actually endanger the child’.
It follows that we are satisfied if the mother had been offered the opportunity to make submissions as to whether:
· the matter should proceed, as she anticipated, as a hearing for interim contact orders; or
· as a hearing for final residence or contact orders either by hearing, and determining the threshold issue of a substantial or significant change, (which may or may not have included limited cross examination of Dr K and Ms W); or
· as a fully defended hearing,
the trial Judge could have addressed all relevant issues, rather than as in fact happened, conducting a limited consideration of changed circumstances.
The trial Judge should have considered and afforded the mother the opportunity to make submissions as to whether in this case, where there were findings of substantiated abuse of the children by the Department of Families after the making of the consent orders, and the expert evidence relied on by the father, which was significantly adverse to the mother and was untested, was a case of the exceptional nature referred to in CDJ v VAJ (supra) requiring a hearing on the merits.
The trial Judge rejected or placed little weight on the evidence the mother relied on or sought to lead to challenge the expert evidence relied on by the father. It appears to us the case was thus conducted on a tightly proscribed basis. One of the ‘changes’ the mother wished to advance was that the foundation for the making of the consent orders was fundamentally flawed. That foundation was the untested expert opinions of Dr K and Ms W.
The unusual facts of this case highlights the difficulty in applying the principles relative to changed circumstances, in circumstances where the real challenge is asserted to be an injustice caused in the making of the consent orders themselves. That injustice is said to arise in this case because:
· the expert evidence available at the time of the making of the consent orders was flawed; and
· there had been no hearing on the merits.
In the vast majority of cases where parties entered into parenting orders by consent, particularly with the benefit of legal advice, it is appropriate that further proceedings should only occur if there has been a significant or substantial change of circumstances. A Judge retains a wide discretion as to the manner in which he or she deals with any further application (see D and Y (supra) at 81,763), and it is not incumbent on a trial Judge to ‘go behind’ the consent orders. However, it appears to us that if the real complaint is that the underlying foundation for the orders is flawed, the inevitable corollary is the requirement for a full hearing on the merits.
Our discussion of the challenges identified by the mother, and the questions we posed in respect of the parenting orders arising out of those challenges, leads us to the conclusion that the mother’s grounds of appeal directed to the parenting orders must succeed and a new trial must be ordered.
THE MOTHER’S FURTHER EVIDENCE APPLICATION
The mother was self represented at all times during the hearing of the appeal and until after we reserved our decision. As we have determined the appeal should be allowed in respect of the parenting proceedings on the grounds we have discussed, it is unnecessary for us to consider the mother’s applications to admit further evidence. However to assist the mother’s understanding of our reasons, and for completeness, we refer to the applications which were before us.
At the hearing of the appeal the mother sought to adduce further evidence including specific documents and tape recordings which we particularise below. Some of the material was conceded by the father’s counsel to have been before the trial Judge, and no objection was raised to the reception of such evidence. We indicated at the hearing we would give our reasons in respect of the further evidence Application with these reasons. We also indicated that after delivery of our reasons if the mother wished to pursue her Application in respect of subpoenaed material, we would make directions for the provision of written submissions. In these circumstances we ordered that all subpoenaed material be retained in the Brisbane Registry of the Court pending determination of the appeal.
The mother sought to rely on a folder of documents described in orders made by May J on 12 August 2005 as ‘Bundle B’. Bundle B comprised documents which were not before his Honour, which the mother now seeks to have admitted, and are as follows:
Doc
No
Document
Dated
1
Opinion of Mr [TB], Barrister at Law, on the application and changed circumstances of the case.
16
April 20042
Summary of [KME and KGE] case prepared by Mr [O], Solicitor
3
Various academic documents reviewing the status of Parent Alienation Syndrome written by various Professors of Psychiatry, Psychology and Early Childhood Development.
4
Letter from Professor [B] re: Parent Alienation Syndrome, received July 2004
5
Minutes of mediation with Registrar Victoire
27
July 20046
Directions and orders of Registrar Victoire
28
July 20047
List of disclosures of abuse by Ms [B], Relationships Australia
8
Transcript of two (2) audio tape recordings made by the children
9
Affidavit of [MK], Director of the Women’s Centre
2002
10
Recordings of meetings and interviews between [the mother] and [Ms B] of Relationships Australia.
11
Report of [Professor J]
2001
12
Report of Dr [L], Psychiatrist
13
Letter of J
December 2004
14
Transcript of [Ms D]’s in camera evidence
10 September 2001
15
Transcript of proceedings
11 October 2004
16
Transcript of proceedings
1 November 2004
17
Transcript of proceedings
22 November 2004
18
Transcript of proceedings
29 November 2004
19
Transcript of proceedings
14 February 2005
20
Summary of Argument by [the mother]
As we have already discussed, the mother also sought to rely on transcript before his Honour on seven occasions prior to the hearing. Notwithstanding that the father filed a Response opposing admission of any of the documents in Bundle B, at the hearing before us his counsel did not oppose the admission of any transcript, other than on the asserted basis of lack of relevance.
We note that the mother also sought to rely on documents identified as ‘Bundle A’. Included in those documents was an affidavit of Ms C sworn 5 November 2002. The father’s counsel opposed the admission of Ms C’s affidavit as part of the appeal books on the basis that it was not before the trial Judge. It is not in dispute that the trial Judge made an order discharging the child representative’s appointment in December 2002. Further, there is no dispute that the child representative commissioned a further report, as contemplated in the consent orders, with Ms W as the report writer, or that the mother did not accept the child representative’s recommendations for a continuation of supervised contact at the children’s contact service operated by Relationships Australia.
After we reserved our decision, on 19 July 2006, solicitors who had been instructed by the mother filed an Application in a Case seeking that the mother be granted leave to adduce further evidence ‘being the report of Professor [M] dated 30 July 2005’. A further procedural hearing was conducted by May J on 28 July 2006 and directions were made for the mother to file written submissions by 18 August 2006 and by the father by 31 August 2006. Neither party filed written submissions in accordance with May J’s orders. Subsequently the mother issued subpoenas, and in accordance with orders made by Registrar O’Reilly of 17 August 2006 each party filed submissions in respect of the subpoenaed material, and the Application to adduce further evidence.
In an affidavit in support of the application, the mother’s solicitor annexed a report by Professor M which is entitled ‘External Review of the Department of Child Safety Involvement with the [obliterated] Family’. The whole of the document is marked ‘FOI release’. The names of the parties the subject of the report have been deleted throughout the report. Subsequent to the filing of her Application in a Case, the mother’s solicitors, who appear to have commenced representing her at about the time of the filing of her Application, issued a subpoena to the Department of Child Safety. The mother sought photocopy access to the Department file and in particular to photocopy Professor M’s original report in which the names of the parties had not been obliterated.
At the commencement of the hearing before us, the mother sought to tender Professor M’s report, and objection was taken to the tender by counsel for the father. After discussion before us about the contents of the report and the basis on which further evidence could properly be adduced, namely to demonstrate that the trial Judge had fallen into appealable error, we rejected the tender, having noted such a report may be relevant at a retrial.
As the mother was not legally represented before us, and her present solicitors have filed this Application, we did re-consider Professor M’s report. On our reading of the report, which was not impeded by the obliterations, it was readily apparent from the document itself the nature of the findings by Professor M.
Notwithstanding the mother’s Application in a Case only sought the admission of the report of Professor M, the mother also in her submissions said ‘[t]he Appellant also seeks an uplift order to police tapes interviewing the children on 9 February 2006. The interview relates to a letter written by one of the children to the Minister for Children in relation to his home situation’. The submissions include the following ‘[t]he Appellant further seeks access to documents produced under subpoena by the Department of Child Safety in response to a subpoena filed on 2 August 2006’. There is no indication what documents were required pursuant to such subpoena.
In respect of the tapes of interviews produced by the Queensland Police Department it was submitted on behalf of the mother ‘an uplift order is required by the Appellant so that the tapes may be transcribed and tendered as evidence to the Full Court so that it can be determined whether or not such evidence will be allowed on the Appeal. A transcript of the police tapes will need to be made available so that the Appellant can make references to the transcript in affidavit evidence and written submissions’. It is clear that the interview of the children referred to was purported to be conducted in February 2006. Because we have determined the appeal should be allowed, it appears to us that the evidence the mother now seeks to adduce in support of the appeal, is evidence which may, if admissible, be relevant on a retrial. Accordingly, we propose to dismiss the mother’s Application in a Case filed 19 July 2006. Further, we do not propose, for the purposes of the appeal, to make orders in respect of material subpoenaed by the mother.
SECTION 79A CLAIM
Ground 8 of the mother’s grounds of appeal goes to the trial Judge’s determination that her claim under s 79A of the Act should be summarily dismissed.
In paragraphs 3 and 4 of her Application, the mother sought the following orders:
‘3. Property + Finances
4. Spousal maintenance $350.00 pw plus $200.00 week unit rented as my accommodation’
In his Response filed 22 April 2004 the father sought the following orders:
‘1. That the wife’s application filed on 21 January 2004 be dismissed;
2.That the wife pay the husband’s costs of and incidental to these proceedings;’
At paragraph 16 of his reasons for judgment the trial Judge said:
‘Further, although paragraphs 3 and 4 of the final orders sought by the wife are rather imprecise, they appear to raise a S79A application and as a Response had been filed seeking dismissal, I thought it was necessary to consider the principles governing summary dismissal. These have been recently addressed by the Full Court in Beck and Beck 2004 Fam.C.A. 92.’
Before us, counsel for the father conceded that no oral application was made before the trial Judge to amend the father’s response to one in which he sought summary dismissal of the mother’s Application to set aside the property provisions of the consent orders.
The trial Judge at the commencement of the hearing referred to the nature of the Applications in a discourse between himself and the father’s counsel. His Honour said:
‘HIS HONOUR: Well, I mean, I suppose what’s before me today in truth is the interim application, but it strikes me – and I mean, we can deal with that on the basis of Cowling. But that leaves the initiating application alive now – to be dealt with at some other time in the future which doesn’t seem to me to be the appropriate way in which I should approach this because if in truth the initiating application doesn’t get over the threshold created by either the case law in relation to children or 79A of the Act, then it’s unnecessary for me to deal with the interim application because the interim application is dependent upon the initiating application, having some validity.
If the initiating application is without merit in the sense that it doesn’t satisfy the tests set down by the Full Court in relation to children in a way in which the Courts should approach a revisitation of residence and contact issues or doesn’t raise even a possible arguable case under 79A, then I should dismiss it, and I shouldn’t get to the - - -
[COUNSEL FOR THE FATHER]: Yes.’
The trial Judge then provided the mother with a copy of the decision in Rice and Asplund (supra) and said:
‘The other matter that needs to be considered is that you need to look at section 79A, which sets out the grounds for setting aside orders altering property interests, and there’s a number of authorities in relation to that section, but it’s a very limited right that the Court has to set aside orders once made in relation to property, and you’ll need to look at it. But I did not find anything in the material that you have filed, which I read last night in chambers, that fits within 79A’.
RELEVANT LAW – SUMMARY DISMISSAL
The principles applicable to an application for summary dismissal are well established by authority (see Beck and Beck (supra); Bigg v Suzi (1998) FLC 92-799 at 84,973-84,974) and also Pelerman and Pelerman (2000) FLC 93-037 at 87,582).
In Lindon vThe Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-5, Kirby J said:
‘The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”’ (footnotes omitted)
THE PARTIES’ SUBMISSIONS
The mother submitted that her case under s 79A was ‘not inherently incredible and as such should have been heard at trial’ (original emphasis). We discern from her submissions that she relied on the following matters to support her Application to set aside the property orders:
(i) that the consent orders were signed by her under duress;
(ii)that she did not receive accurate information from her counsel; and
(iii)a claim the father had a care order for the children as a result of inappropriate actions by the Department of Child Safety and Queensland Police Juvenile Aid Bureau.
We also discern she asserted she was not afforded procedural fairness. We have some difficulty with aspects of the third basis of the claim as asserted by the mother in her written submissions set out by us in sub-paragraph (iii) above. We accept as a litigant in person she may have had difficulty in articulating the basis of her claim before the trial Judge if her claim is based on a miscarriage of justice ‘as a result of “any other circumstance”’.
The father’s counsel’s submissions did not directly refer to ground 8, although they did refer to the mother’s challenge in her grounds of appeal to the trial Judge’s asserted failure to apply the guidelines of Re F: Litigants in Person Guidelines (supra). The father’s counsel noted that whilst the mother was a litigant in person she demonstrated a familiarity with procedure and principle and was able to refer to the decision of the Full Court in ‘Perlman’s Case [sic]’ (Pelerman and Pelerman (supra)). We note discussion about that case occurred in the following context:
‘HIS HONOUR: Thank you. [To the mother] can you – have you had an opportunity to look at section 79A of the Family Law Act?
[THE MOTHER]: I haven’t really, your Honour, but in a submission to legal aid it relates to the Pallerman v Pallerman [sic] case 2000, is that correct?
HIS HONOUR: The - - -
[THE MOTHER]: It relates to Pelerman v Pelerman of 2000.
HIS HONOUR: Yes.
[THE MOTHER]: Is that correct?
HIS HONOUR: Go on, tell me what - - -
[THE MOTHER]: Well, the Court [said] that the wife’s lack of knowledge of the legal effect of the document that she signed, coupled with the lack of opportunity to fully comprehend her right to obtain independent legal advice regarding the property settlement, which was apparently outside the range of what is just and equitable resulted in a miscarriage of injustice. And another case – is that what you’re asking me, your Honour?
HIS HONOUR: Yes, I’m asking you to direct my attention to what it is under section 79A that you say enables you to reopen the property.
[THE MOTHER]: Well, I guess, your Honour, that I was totally unaware of the gravity of the orders that I signed. I was disallowed to read those orders. They were brought to me late in the afternoon and actually removed from my hand three times, which is actually stated by my witness in annexure A of that affidavit of January 2004. So I had no idea of what material was in the consent orders until that night when I read them. And I was actually advised by Mr [F] that the best procedure for this case was to sign consent orders for six weeks - - -
[COUNSEL FOR THE FATHER]: Objection, your Honour.
HIS HONOUR: It’s relevant in relation to this issue, I think, [addressing counsel for the father]. Go on.
[THE MOTHER]: To sign the orders for six weeks giving my husband residency of the children, and then to bring the matter back to Court in six weeks as the applicant. And there were three things that we discussed on that day. It was to give the children to my husband for what I believe was six weeks. The other thing was that my husband wanted the dining room chairs from the marriage, and that I had to pay $15,000 up front child support.
So when I went to sign the consent orders, your Honour, Mr [F] said, “You know what’s in them, you don’t have to read them”. And then he actually stated, to hurry up because the Judge wanted to go home. And three times he removed them from my hand and disallowed me to read them.
HIS HONOUR: Thank you. All right.’
Later in the hearing, during the course of the father’s counsel’s submissions, the trial Judge was referred by counsel to the mother’s affidavit and to a witness statement, being exhibit “A” to the mother’s affidavit.
The transcript of 17 August 2004 disclosed a lengthy exchange between the trial Judge and the father’s counsel about the appropriateness or otherwise of dismissing the s 79A Application summarily. When the issue of a miscarriage of justice out of the judicial process itself arose, the father’s counsel sought to defer her submissions on that issue until the following day. At that time the trial Judge raised with the father’s counsel the issue of spousal maintenance. We note no submissions were made by either the mother or the father’s counsel in relation to the mother’s claim for spousal maintenance, and that the mother raises no ground of appeal in respect of his Honour’s dismissal of her Application for spousal maintenance.
In her oral submissions before the trial Judge the mother referred his Honour to relevant legal principles set out in Beck and Beck (supra). The mother also referred to Marzec and Marzec [2003] FamCA 1304 which she said had been ‘provided for us’.
DISCUSSION s 79A
As we have noted, counsel for the father most appropriately conceded before us that the father’s Application was one in which he sought dismissal of all Applications by the mother, and not one in which he sought summary dismissal of the s 79A Application. Counsel conceded, with hindsight, an application should have been made to amend the father’s Response.
We have already set out an extract from the guidelines in Re F: Litigants in person Guidelines (supra). The mother came to the hearing expecting an interim hearing of parenting proceedings, or a review of the consent orders, followed at some later date by a final hearing when evidence would be tested. Our examination of the transcript reveals substantial discussion between the trial Judge and counsel for the father about the appropriateness or otherwise of summarily dismissing the mother’s Application under s 79A. However, that was not the Application before the trial Judge.
We conclude that the trial Judge was therefore in error, absent an application for amendment, and an opportunity for the mother to respond to any proposed amendment, in dealing with the Application on a summary basis. Further, we are unable to identify from the transcript any explanation by the trial Judge of the procedure he intended to adopt, or opportunity afforded to the mother to oppose the Application being dealt with on a summary basis. It appears to us that guidelines one to three in Re F: Litigants in person Guidelines (supra) were not adopted in this case, and the mother was not consequently afforded procedural fairness.
In these circumstances, we do not consider it is necessary for us to examine whether or not the mother’s case, based on her evidence, disclosed any reasonable cause of action.
FATHER’S FURTHER EVIDENCE APPLICATION
The father also sought to adduce further evidence being an affidavit of Mr CB filed 30 May 2005 and an affidavit of Mr F filed 20 July 2005.
We are conscious that the father’s Application for further evidence includes an affidavit from Mr F of counsel who appeared for the mother at trial, setting out his recollection of the conduct of the proceedings leading up to the making of the consent orders. Whilst his evidence going to the merits of the s 79A Application may, if legal professional privilege has been waived, be relevant at a rehearing, as we have allowed the appeal on the ground discussed above, it is unnecessary for us to consider this evidence.
SECTION 118 CHALLENGE
It is apparent from his Honour’s ex tempore reasons for judgment delivered on 14 February 2005 he concluded that the mother’s Applications both in respect of the parenting orders sought and the s 79A Application were frivolous and vexatious.
It is unnecessary, given our findings in respect of the substantive appeal to discuss the order made pursuant to s 118 of the Act, or the costs order made by the trial Judge as those orders cannot stand.
CONCLUSION
We have found the mother’s grounds of appeal have merit both in relation to the orders made on 11 October 2004 and the subsequent orders of 14 February 2005.
Unfortunately, the circumstances of this case are such that we cannot re-exercise the discretion of the trial Judge and the matter must be remitted for rehearing before a Judge other than Monteith J. In ordering a retrial we are conscious that the issues raised before the trial Judge and in this appeal, having regard to the criteria identified in Re: K (1994) FLC 92-461, indicate that pursuant to s 68L an independent children’s lawyer should be appointed to represent the interests of the children at such rehearing.
COSTS
At the conclusion of the proceedings before us we sought submissions from each party in relation to costs of the appeal. The mother indicated in the event the appeal was successful she would seek a certificate under the Federal Proceedings (Costs) Act1981 (Cth). Counsel for the father indicated in the event the appeal succeeded she would also seek a certificate under the Federal Proceedings Costs Act1981 (Cth) and a further certificate in respect of a rehearing.
As we have upheld the appeal on the basis of error of law we find it is appropriate to grant the certificates sought.
I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 22 November 2006
2
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